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Stay Question
The auto stay prevents collection of any claim which arose before the bk.
The eviction is a postpetition event, so stay will not apply, if and only if, you limit the claim of damages to damages after the bk was filed. Ask for anything prepetition and you are asking for trouble.
Remember there is an in personam stay and an in rem stay. The relief you describe doesn't state clearly that the relief is in personam.
If the tenants do not include the debtor, eviction will be in rem, with respect to the estate.
If the debtor is a tenant, the eviction will be in personam.
I would make sure no damages are requested for anything before your client got its postpetition title.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Sep 23, 2013, at 11:25 AM, wrote:
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> I represent a creditor on a commercial property. I got RFS that included a finding of scheme to hinder delay and defraud under 362(d)(4)(A) due to multiple filings affecting the Property. The order says that if recorded in conformity with state law it is effective "..in any other bankruptcy case purporting to affect the Property filed not later than 2 years after the date of the entry of this Order, except that the debtor may apply for relief...[based on a change of corcumstances...].
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> The RFS Order was recorded properly.
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> The day before the F/C sale, the same debtor who had filed about four cases (that led to the above described Order) filed a pro per chapter 13 (her fifth case). I instructed the foreclosure company that there was no stay and to hold the sale, which they did. Property reverted to my client the beneficiary. So far so good.
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> We are going to start eviction of tenants promptly. The debtor is likely a person in occupancy. Would you all agree that the term that the RFS Order "...is binding and effective...in any other bankruptcy case purporting to affect the Property..." includes an eviction of the debtor? I think so, but am open to arguments to the contrary.
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> I don't think I need to bring RFS to evict. Judge Kwan is the one who signed the RFS order if that helps.
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> Thanks,
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> Jeff Smith
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